In the case of Wiltshire Council v Cooper Estates Strategic Land Ltd  EWCA Civ 840, the Court of Appeal ("CA") upheld a High Court ruling which overturned the decision of Wiltshire County Council ("the Council") to register a plot of land as a town or village green ("TVG") owing to the fact that a "trigger event" had occurred.
Section 15 of the Commons Act 2006 ("the Act") grants members of the public the right to apply for land to be registered as a TVG. The effect of such a registration is, for practical purposes, to sterilise the land for development. Since 2006 (and the "Trap Grounds" case)1 the courts have adopted a wide definition of TVG which goes far beyond that which one might expect to constitute a traditional village green: car parks, golf courses and scrubland have all been registered as TVG and, therefore, protected from development. Successive governments grew increasingly concerned that the TVG registration system was being used as a means of stopping developments that might otherwise have been permitted through the planning system.
In response, the Act was revised by the Growth and Infrastructure Act 2013, which inserted a new Section 15C into the Act. This new Section 15C prevents a TVG registration where a "trigger event" occurs. Trigger events include situations where a development plan, which has been adopted by a local authority, identifies the land for potential development. Once a trigger event has occurred, the land in question could only ever be registered as a TVG if a "terminating event" were to occur (see Section 15C(2) of the Act). Terminating events include situations where a development plan ceases to have effect or is revoked, or a relevant policy is superseded.
Facts of the case
In Wiltshire Council v Cooper Estates, an application was made to the Council by an interested third party to register a small triangular plot of land (totalling 380 square metres) ("the Land") within the settlement boundary of Royal Wootton Bassett as a TVG.
Cooper Estates, the owner of the Land, objected to the application and argued that as the Land had been identified for potential development in the Wiltshire Core Strategy, a trigger event had occurred.
The Wiltshire Core Strategy was adopted by the Council in 2015 and two of its key policies include:
- Core Policy 1 ("CP1") which is the settlement strategy identifying settlements, one of which is Royal Wootton Bassett, where sustainable development would take place; and
- Core Policy 2 ("CP2") which provides that within those settlements there is a presumption in favour of sustainable development.
The Council considered that the provisions of the Wiltshire Core Strategy were not enough to satisfy the definition of a trigger event and the Land was therefore registered as a TVG.
In the High Court
Cooper Estates successfully challenged the Council's decision in the Administrative Court. The judge found that a trigger event had occurred, stating "the Core Strategy through CP1 and CP2 identifies an area of land which includes the Land (i.e. the boundary of Royal Wootton Bassett) and identifies it for potential development by creating a presumption in favour of development within the settlement boundary."
In the Court of Appeal
The key issue on appeal was whether the Land had been sufficiently identified in a development plan document for potential development. In support of the High Court's decision, the CA found as follows:
- Identification: it was not a requirement for the Land to be specifically identified for development. It was sufficient for it to be included as part of a larger area identified in a development plan
- Potential development: CP1 and CP2 resulted in the Land being identified as having the potential for development, and this was sufficient to constitute a trigger event. It was incorrect to adopt a restricted approach whereby the trigger event would only arise where the Land had been specifically identified for development. It was not the role of the Council to consider whether planning permission would ever be granted in respect of the Land, just whether there existed the potential for development, which in this case there was.
With regard to the issue of potential development, the Court did not rule out the possibility that in certain cases, development plans could indicate that a specific parcel of land would not be developable and therefore not result in a trigger event. Equally, the CA highlighted that where a trigger event had occurred, and the absolute protection against development in consequence of registration as a TVG is removed, it would not necessarily lead to the consequence that the land will be developed.
The CA held that allowing a TVG registration in the present case would frustrate the objectives of the development plan and be contrary to the intentions of government policy and the new legislation. The TVG registration was therefore successfully overturned
This case will come as good news for developers who may wish to object to the registration of land as a TVG. The CA has resolved previous ambiguities as to what constitutes a trigger event by adopting a wide interpretation. As such, if land is identified in a development plan document as having the potential for development, regardless of the prospects of obtaining planning permission for any development, it is likely that a trigger event would have occurred, thereby blocking registration of the land as a TVG.
The judgment clearly indicates that the protection of a piece of recreational land with identified development potential should instead be achieved through the planning system and not by means of registration as a TVG. The identification and protection of green recreational land can be realised through the planning process by the designation of land as Local Green Space2 in development plan documents, which are themselves the subject of extensive public consultation and involvement.
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